Rape, Justice, and the ‘Times’

“I’ve never felt so ill,” says one reporter about the paper’s coverage of the Duke lacrosse-team case. Luckily, a blogger’s on the story, too.

As a young writer at Time, whenever I’d hear “That story’ll write itself,” I wanted to reach for my revolver. The line, delivered with bluff cheer, suggests that good material makes good writing easy, which isn’t true. Its premise is the very wellspring of hackdom: The more thoroughly some set of facts reinforces the relevant preconceptions, caricatures, clichés, and conventional wisdom, the easier it makes life for everyone, journalists as well as their audiences. Most people want to be told what they already know. And in a world of murky moral grays, who doesn’t sometimes relish a black-and- white tale, with villains to loathe, victims to pity, injustice to condemn?

Thus the enthralling power of the Duke lacrosse-team story when it broke last spring. As a senior Times alumnus recently e-mailed me, “You couldn’t invent a story so precisely tuned to the outrage frequency of the modern, metropolitan, bien pensant journalist.” That is: successful white men at the Harvard of the South versus a poor single mother enrolled at a local black college, jerky superstar jocks versus $400 out-call strippers, a boozy Animal House party, shouts of “nigger,” and a three-orifice gangbang rape in a bathroom.

The story appalled us good-hearted liberal metropolitans, but absolutely galvanized the loopy left at Duke. One associate professor, Wahneema Lubiano, could barely disguise her glee. “The members of the team,” she wrote in a blog, “are almost perfect offenders” because they’re “the exemplars of the upper end of the class hierarchy … and the dominant social group on campus.”

Furthermore, she wrote, “regardless of the ‘truth’ ”—that is, regardless of whether a rape occurred—“whatever happens with the court case, what people are asking is that something changes.” Lubiano’s faith-based commitment to her truth reminds me of George Bush, but also of something else journalists like to say, usually as a joke—that some juicy fragment of reporting is “a fact too good to check.”

But real facts are stubborn things. And today, the preponderance of facts indicate that there is an injustice—committed, as it turns out, against those perfect offenders. Yet at the epicenter of bien-pensant journalism, the New York Times, reporters and editors—although pointedly not the paper’s columnists—are declining to expose it. “The only thing we can look forward to now,” says Dan Okrent, who was the Times’ ombudsman until last year, “is what the Times will say to the accused once the charges are dropped, or once acquittals are delivered.”

In this age of CSI, we understand DNA tests to be a silver bullet that exonerates the unjustly prosecuted. As the Durham, North Carolina, D.A. assured the judge when he asked to test the lacrosse players: “The DNA evidence … will immediately rule out any innocent persons.” His first round of tests found no matches. And yet a week later came his first two indictments, of the New York suburbanites Reade Seligman and Colin Finnerty. A second set of ostensibly more sophisticated tests was conducted. Again, no match; and again, a few days later, a third indictment.

We also all know how police lineups are supposed to work: a suspect mixed in with several people of the same physical description. Yet just after the alleged rape, the accuser was shown photos of 24 members of the lacrosse team, period. She identified none as her rapists. Five days later, another lineup with only players’ photos—and again nothing. Finally, after days of street protests, the prosecutor told cops to try a third time, to show her all 46 white players at once. This time she picked out Seligman and the two others.

The accuser said her rape lasted 30 minutes. But her fellow stripper said that she’d been with her for all but five minutes, and knew nothing of any attack. Then it turned out that various players’ time-stamped digital photos of the accuser account for all but eleven minutes of her hour and a half at the party house. So last month the D.A. refashioned the allegation to fit the facts: “If I had to speculate,” he told the judge, “I’d say this whole event took five minutes, maybe ten minutes at the outside.”

The D.A. said last week he absolutely still believes the accuser’s story, even though he has never actually heard her tell it. Not unlike the way he has refused to let Seligman’s lawyer show him exculpatory evidence.

And that evidence—cell-phone records, surveillance video at an ATM, an I.D.-card swipe at his dorm—looks rock-solid, accounting for his whereabouts minute by minute for the hour during which the rape supposedly occurred. The Law & Order episode could write itself.

So why on earth does a heretofore well-regarded prosecutor push so … crazily to bring indictments? The Occam’s-razor answer seems compelling: politics. Mike Nifong was appointed district attorney last year, but he has to win elections to keep the job. The peak of the Democratic primary campaign coincided with the rape allegation, and just after the DNA tests came back negative, Nifong, who’s white, told a black crowd at the accuser’s college, “I assure you by my presence here that this case is not over.” Two weeks later, he won the election, narrowly, after racking up big margins among black voters.